Divorce Rights

If the relationship cannot be saved then it may be appropriate to seek a divorce. The divorce issues may include minor children, custody, and a parenting plan.  Please watch our YouTube video on how to evaluate which parent may end up with primary physical custody.

Child support calculators are available online.

If you know the proper data to input then the calculation is simple. The basic factors required are the number of children involved, each party’s average gross monthly income, the cost of work related child care for each child throughout the year and the health insurance premium attributable to covering the minor children.

The child support calculation will reveal the presumed amount of support but the presumption may be rebutted and the court may deviate from the presumed amount based on a number of other factors.

There may be an issue of whether one party should support the other party for a limited period of time. It is often difficult to predict the amount of the payment and the length of time it will be paid because there are many factors considered including the length of the marriage, sacrificing a career to raise a family, the age of the parties, the education of the parties, the work experience of the parties and whether there is a disparity in income.

Assets that are acquired in either person’s name during the marriage are marital assets unless the asset was acquired by gift or inheritance and kept separate. Marital assets are divided equitably which means fairly. Relative contributions to the marriage, not just to the accumulation of wealth, but also contributions to the household and child rearing may be considered. While many judges may decide that a fair distribution would be close to equal, it is difficult to predict.

Do not get caught up in the label of whether a divorce is uncontested or contested. An uncontested divorce does not simply mean that both parties agree to the divorce. It means that the parties have agreed to all the financial and parenting terms such as a parenting schedule and custody, the amount of child support or other support to be paid and who gets which specific assets and debts.

Ironically, while most cases do not start with an agreement on all these issues, most cases end with an agreement on all these issues. A divorce that starts out contested may end up uncontested. However, the court process needs to be used to create deadlines, to bring the parties to the table, to get the advice of counsel, to make sure there are financial and other disclosures, and to avoid imbalance in the negotiating process.

In most marriages one spouse primarily handles the finances and the other does not. There is an imbalance in bargaining power, fortitude and knowledge as to the finances. It is difficult and unusual that people are capable of reaching a fair agreement at the kitchen table without the advice of lawyers, a full financial disclosure and the safety of negotiating in a neutral environment.

After someone initiates a divorce there will be a financial disclosure, typically both parties obtain the advice of counsel, and then the parties end up reaching an agreement on the terms of custody, support and the division of assets during the process of mediation. Then the parties, through counsel, can submit the agreement to the judge for approval and avoid the drama, financial expense and emotional expense of a trial.

Most judges understand that they don’t have as much insight into a particular marriage dynamic as the parties have. Most judges cannot afford to take the time to fashion a unique solution to the conflicts that arise between the parties. Accordingly, before a Judge conducts a final divorce hearing, it is typical to require the parties to attend mediation.

Mediation is not a trial and the mediator is not a judge. However, the mediator is neutral and impartial. They do not take sides. Instead of the parties using their attorneys to send settlement offers back-and-forth by mail or email, it is more effective for everyone to meet in the same building at the same time, in two separate rooms, and have a mediator facilitate the settlement process.

The mediator may become an agent of reality and separately give each side some realistic scenarios of terms that would be acceptable, albeit painful, to both sides. No one wins everything that they want whether it is at mediation or at trial. Mediation is a give and take process.

The advantages are saving time and money, easing hostilities and avoiding the uncertainty of having a total stranger, a judge, make decisions on everything that the parties hold dear, such as future living arrangements of your children, paying or receiving support and giving up or keeping certain assets or debts.

Although the divorce process results in a Final Judgment and the distribution of assets and debts cannot be modified, there are dynamics involved in a divorced family situation including custody and child support. If there’s an unforeseen significant change in circumstances, one of the parties may need to file a petition to modify custody or support. A change in circumstances may be the result of one of the parties desire to relocate, an older child’s election to live with the other parent, or a significant increase or decrease in one of the parties’ income.

Beware of situations where there is a verbal agreement between parents to change the living arrangement of the children and to reduce child support. The final judgment is an order and only a judge can change it. If the parties agree to the modified terms then the process of obtaining a new order is faster and less expensive. If they do not agree, the legal process begins again with the filing of a petition, financial and other disclosures as needed, mediation, and perhaps a final hearing.